* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order delivered on: November 13, 2013 + CM(M) No.1183/2013 & C.M. No.17217/2013 MOHD. ASIF ..... Petitioner Through Mr.G.M.Farooqui, Adv. versus DELHI WAKF BOARD Through ..... Respondent None CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.
1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed the impugned order dated 18 th September 2013 passed by the learned ADJ-02/Wakf Tribunal, Patiala House, New Delhi, in a suit bearing No.ML610, whereby the application of the petitioner (plaintiff in the suit) under Order XXXIX, Rules 1 & 2 read with Section 151 CPC seeking relief to grant interim protection by way of staying the operation of the eviction order dated 31st December 2009 passed by the Chief Executive Officer of the respondent-Board was dismissed by the Tribunal.
2. The suit was filed by the petitioner/plaintiff with a prayer for passing a decree, declaring relationship of tenant and landlord between the parties; declaring the proceedings under Section 54 of Wakf Act as null and void; declaring that the Wakf is a Shia Wakf, and also a decree for permanent injunction against the respondent and its agents, employees and representatives preventing them from dispossessing the petitioner from the suit premises.
3. The case of the petitioner before the learned trial Court was that he is in possession and occupation of one Hamam (Gusal Khana) and one room situated on the roof of the said Hamam in property bearing Municipal No.5216, Masjid Chooney Wali, Basant Road, Pahar Ganj, New Delhi110055 in the capacity of a tenant. The plaintiff claimed that the Masjid is a Masjid Ali and the said property is a Wakf property which includes the tenanted premises, the Masjid and Imambara.
4. The petitioner further stated that he was issued an eviction notice and subsequently, an eviction order was passed against him to vacate the suit premises on the alleged ground of being an unauthorized occupant of the premises.
5. The petitioner claims that his father, who was a tenant of the Delhi Wakf Board in respect of the suit premises was managing the Masjid and he took over the management after the death of his father, as no managing committee was appointed by the respondent for the purpose. The petitioner claims to be regularly holding religious functions in the Imambara and managing the Masjid and further claims to have inherited the muttawaliship as well as the tenancy from his father. He adds that the said Masjid is a Shia Masjid and due to prejudice among the staff of the respondent, the proceedings against him were wrongly initiated by the respondent-Board.
6. The respondent, on the other hand, denies the tenancy of the petitioner and also of his father. The respondent also denies the claim of the petitioner of issuing of rent receipts to his father during his lifetime.
7. The respondent refutes the petitioner’s claim that the Masjid Chooney Wali is a Masjid Ali and states that the petitioner made false averments due to motivated interests and malafide intentions of usurping the Masjid. The Masjid is stated by the respondent to be under the direct management and control of the Wakf Board and the petitioner was neither appointed as Muttawali nor authorized to look after the Masjid.
8. Along with the suit, the petitioner also filed an interim application with a prayer that the proceedings pending under Section 54 of the Wakf Act in the office of the respondent/SDM concerned be stayed till the final disposal of the suit and he be not dispossessed from the tenanted premises. Reply was filed by the respondent. However, the said application was dismissed by the learned trial Court by the impugned order.
9. It has been observed by the Wakf Tribunal in the impugned order that the respondent-Board has not specifically denied the possession and occupation of the suit premises by the petitioner and his father since long. Interpreting Section 54(4) of the Wakf Act, the Tribunal was of the considered opinion that the proviso of the said provision prohibits a person who has been led into possession of the property as a lessee, licensee or mortgage by the muttawalli of the Wakf or by a person authorized by him, from instituting such suit. The Tribunal found no prima facie case made out by the petitioner and therefore, dismissed the application.
10. The issue arising before this Court is whether the order of the Wakf Tribunal is an abuse of the process of law and against the principles of natural justice.
11. The interim application filed by the petitioner was dismissed mainly on the reasons stated in paras 9 & 10 of the impugned order. The same read as under:
“9. Section 54(4) of the Wakf Act, 1995 authorises a person aggrieved by the eviction order of the CEO to institute a suit before the Tribunal to establish his right, title or interest in the property. At the same time, the proviso thereto prohibits a person who has been led into the possession of the property as a lessee, licencee or mortgage by the muttawalli of the Wakf or by a person authorized by him, from instituting such suit.
10. If the plaintiff is believed that his father was a tenant, for the sake of argument, the plaintiff would have no right to institute the present suit. On the other hand, the plaintiff would be an unauthorized occupant who is sought to be evicted, following the due process of law. In either circumstances, there is no prima facie case made out on behalf of the plaintiff nor the balance of convenience lies in favour of the plaintiff.”
Scope of Appellate Interference in Interlocutory Orders 12. In Wander Ltd. vs. Antox India P. Ltd., 1990 (Supp) SCC727 their Lordships had analysed the powers of the Appellate Court in such matters as follows:
“The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion”.
13. In the present case, there is no material available to make out a prima facie case nor the finding of the learned trial Court show its acts arbitrarily or capriciously or perversely in the exercise of its discretion. Thus, no interference is called for.
14. It is the admitted position that the case of the respondent is that the petitioner’s father was merely a licensee of the suit premises and now, the petitioner is in unauthorized occupation thereof. There is no material on record to show that the petitioner at any point of time was/is either the licensee or tenant of the suit property. Thus, the case of the petitioner that he is a tenant of the respondent and a protected tenant under the Delhi Rent Control Act is without any force.
15. In view of the above said reasons, the findings arrived at by the Chief Executive Officer, Delhi Wakf Board while passing the eviction order dated 31st December, 2009 under Section 54 of the Wakf Act, 1995 as well as by the learned trial Court in the impugned order dated 18 th September, 2013 do not require any interference.
16. The present petition is accordingly dismissed so as the pending application. (MANMOHAN SINGH) JUDGE NOVEMBER13 2013